Delhi District Court
Jagat Singh vs Union Of India on 30 September, 2009
IN THE COURT OF SHRI GORAKH NATH PANDEY, JSCC/ASCJ/GUARDIAN
JUDGE(NE)
Suit No. : 239/09
Date of institution: 01.08.2006
Date of hearing final arguments: 30.09.2009
Date of Decision: 30.09.2009
Number of pages: 28
In the matter of :
1. Jagat Singh
s/o Late Shri Ghasi Ram
2. Braham Singh
s/o Late Shri Ghasi Ram
both r/o Khasra no. 52/2/2 & 49/22/2,
village Karawal Nagar, Delhi.
......... Plaintiff.
Versus
1. Union of India
through its Chief Secretary
Central Secretariat, Delhi.
2. Gram Sabha, Karawal Nagar,
through Dy. Commissioner
Nand Nagri, Delhi.
3. Municipal Corporation of Delhi
through Commissioner of MCD
Town Hall, Delhi.
........... Defendant
SUIT FOR PERMANENT INJUNCTION.
JUDGMENT:
The brief and relevant facts for the filing of this suit is as follows.
The plaintiff stated himself as bhumidar of khasra no. 49/22/2 (0-13) and 52/2/2 (2-12) of village Karawal Nagar, Delhi vide the khatoni of the year 1984-85. It is stated that the then Gramsabha allgedly procured the land in question vide order dt. 28.11.85 and 10.12.87 but it was done without giving any show cause notice to the plaintiff and without holding any proper proceedings under the Delhi Land Reforms Act 1956. Thereafter no suit was filed by the Gramsabha against the plaintiff for dispossessing him from the bhumidari holding under section 81 of Delhi Land Reforms Act or under any provision. Now by virtue of DLR Act vide section 81,84 & 85, the bhumidar of plaintiff was reverted to the plaintiff, even though the initial vesting was void and illegal. Plaintiff has raised the construction more than 12 years back, which is used for housing his agricultural implements and for tying his bullocks and cattle. The land is being used for residential purpose for supervision. Plaintiff have also erected a tubewell more than 12 years back and he used the electricity for the well and not on domestic basis and the property of plaintiff is also assessed for the purpose of house tax on the construction. Now, the employees of MCD are threatening to demolish the disputed construction which was constructed just to supervise the agricultural purposes. MCD is trying to do so without serving any notice and the action of defendant is malafide and illegal and it is against the principles of natural justice. As the defendant are adamant to demolish the property of plaintiff. By finding no alternate, plaintiff has filed the present suit.
2. The defendants contested the suit by filing the written statement. Defendant no.1 and 2 has taken some preliminary objection. It is stated that plaintiff has no locus standi to file the present suit. Neither he is owner nor bhumidar nor assami nor allotee in respect of khasra no. 49/22/2 (0-13) and 52/2/2 (2-12) of village Karawal Nagar, Delhi. The land in dispute belongs to the gram sabha, village Karawal Nagar, Delhi. The gramsabha is the owner and bhumidar of the suit property. It is stated that he suit is not maintainable under the provisions of section 99 of Delhi Panchayat Raj Act. As no notice was served upon the plaintiff before filing the present suit. It is stated that this court has no jurisdiction to try the present suit as the same is barred under DLR Act. While denying rest of the material contentions of the plaintiff in his plaint the defendants prayed to dismiss the suit with heavy cost.
Written statement also filed by MCD, defendant no.3, in which MCD has taken the preliminary objection that the suit is not maintainable for want of statutory notice under section 477 & 478 of DMC Act. It is stated that the suit is without any cause of action and the same is liable to be dismissed u/o 7 rule 11 CPC. It is stated that the plaintiff has not come to the court with clean hands and suppressed the material facts. It is stated that plaintiff has no right, title and interest over the suit land and he is merely encroacher upon the government land and the encroachment has been made in the shape of pakka room which is removed partly by the irrigation & Flood Control Department on 29.06.06 and 30.06.06 during the joint removal of encroachment action along with the defendant no.2. While denying rest of the material contentions of the plaintiff in his plaint the defendant prayed to dismiss the suit with heavy cost.
3. Replication to the written statement of the defendants was not filed by the plaintiff.
4. In view of pleading of the parties, following issues were framed vide order dt. 23.05.2007.
1. Whether this suit is not maintainable as per section 185 of the DLR Act? (OPD)
2. Whether the plaintiff has not come before the court with clean hands and has suppressed the material facts?(OPD)
3. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for ? (OPP)
4. Relief.
As observed, issue no.1 was treated as preliminary issue which was disposed off vide order dt. 23.08.2007 in favour of the plaintiff and against the defendants. The case was thereafter fixed for plaintiff evidence.
5. Four witnesses in total were examined by the plaintiff in support of claim and contentions. Plaintiff filed his affidavit by way of evidence and was examined as PW1 who deposed regarding the case as mentioned in the plaint and in fact the witness has reiterated and re produced the averments as mentioned in the plaint on oath. The witness further deposed regarding relevant documents i.e. affidavit by way of evidence Ex. PW1/A, other documents in connection with suit no. 150/07 Ex. PW1/1 to Ex. PW1/7 and the photographs mark A with respect to the possession of the suit property. The witness lastly deposed that this suit is correct and prayed for passing decree in his favour.
Shri T.S. Joshi, Patwari SDM Office Seelam Pur appeared with the summoned record and was examined as PW3 and deposed that the entry of the girdawari in respect of khasra no. 49/22/2, 52/2/2 is being carried out regularly. The PW T.S. Joshi was again examined on 29.03.08 and proved the report Ex. PW2/1 deposing that prior to vesting in gaon sabha of the land, Mangal Sen Jagat Singh was the bhumidar of khasra no. 49/22/2 and 52/2/2.
Summoned witness Shri S.K. Grover, UDC from SDM office, Seelam Pur, Delhi, was also examined as PW4 who appeared with the summoned record of ccase no. 309/RA/Shah./87 in re: Gram Sabha Karawal Nagar, Delhi Vs. Mangal Sain and ors. with respect to land comprising khasra no. 49/22/2, 52/2/2 village Karawal Nagar, Delhi pending int he court of SDM Seelam Pur Ex. PW4/A and status report of the property Ex. PW4/B. As no other witness remained to be examined by the plaintiff, the PE was closed and the case was fixed for DE.
As observed from the records, no evidence was lead by the defendants despite repeated and ample opportunities. The DE was therefore closed vide order dt. 25.08.2009.
6. I have heard final argument on behalf of parties and gone through the relevant records along with relevant provisions of law.
The argument advanced by Ld. counsel for the plaintiff in this regard is that the case of the plaintiff stands proved in view of the unrebutted and uncontroverted testimony of the PWs and the material documents are on record. The defendants has taken false plea to harass the plaintiff. The request is made to pass decree in favour of the plaintiff and against the defendants.
It is argued on behalf of the defendants/MCD that this is a false suit and in the garb of this suit for injunction, the plaintiff is seeking the relief of declaration which cannot be permitted or allowed without payment of the appropriate court fees and plaintiff is not entitled for any relief. There is no cause of action for filing of this suit and this suit is filed to harass the defendant. The plaintiff has no right, title or interest in the suit property and this suit is filed to grab the government land. The prayer is made to dismiss the suit with exemplary cost.
7. My findings on the above said issues are as follows:
Issue No.1.
1. Whether this suit is not maintainable as per section 185 of the DLR Act? (OPD) Issue no.1 already disposed off vide order dt.
23.08.2007 in favour of the plaintiff and against the defendants.
Issue NO. 2.
2. Whether the plaintiff has not come before the court with clean hands and has suppressed the material facts?(OPD) The onus to prove this issue was on the defendants and this issue was also framed in view of the contention of the defendant in the WS. As mentioned, no evidence was lead by the defendants despite repeated and ample opportunities in support of claim and contentions and to discharge the onus for proving this issue. Merely taking of the objection in the WS is not sufficient. The defendants accordingly failed to discharge the onus and prove this issue. This issue is decided in favour of the plaintiff.
Issue NO. 3.
3. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for ? (OPP) The brief and relevant facts for filing of this suit along with the defence of the defendants, and the testimony of the witnesses examined by the plaintiff has already been mentioned at the outset. As above mentioned, the onus to prove the issue no.3 regarding entitlement of the plaintiff for the relief claimed in this suit remained on him.
8. By way of this simplicitor suit for injunction, the ownership and declaration regarding the title of the property cannot be done, neither the same is in the domain of the suit. It is further needless to mention that if the plaintiff has to succeed in the suit, he has to prove the contents as mentioned in the plaint showing his rights, title and interest in the suit property.
9. I have gone through the documents relied by the plaintiff in support of his claim and contentions along with the contention that the plaintiff is in possession of the suit property as he was bhumidar and hence this suit is filed against the defendants for permanent injunction. The relevant provisions for the transfer of immovable property and sale thereof is prescribed under the Transfer of Property Act. The plaintiff is claiming the discretionary and equitable relief of injunction and he has to show the perfect legal right and the encroachment thereof on the same for the grant of relief of injunction. The plaintiff is bound to prove his case and discharge the onus to succeed thereon. As above mentioned, the plaintiff is claiming the right in the suit property being bhumidar and the right, title and interest of defendants is not denied in the suit property.
I have gone through the testimony of the witnesses examined by the plaintiff in support of claim and contentions. Admittedly as deposed by PW2, the suit property i.e. khasra no. 49/22/2 measuring 13 biswa and 52/2/2 measuring 2 bigha 17 biswa have already been vested in the gaon sabha and the plaintiff has challenged the vesting order before the concerned SDM. Plaintiff has not instituted any claim to be declared as bhumidar in respect of the suit land and in one way or the other seeking the same relief by way of this simplicitor suit for injunction which cannot be permitted. I do not find any merit in the contention of the plaintiff that there is no requirement of seeking declaration of bhumidari rights as he is already bhumida as admitted the suit property has been vested in the gaon sabha and that matter is under subjudice before the concerned SDM. I also do not find any merit in the contention of the plaintiff and denial that this suit property is not owned by the gaon sabha as this is neither the case of the plaintiff rather it is basis of this suit. Admittedly the part demolition of the suit property was also carried out by the defendant and the suit property may be considered as government land being vested in the gaon sabha despite denial by the plaintiff during his cross examination.
10. I have considered the relevant law i.e. Section 41 (h) of the Specific Relief Act wherein it is mentioned that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other unusual mode of proceedings except in case of breech of trust. Needless to mention, in this case and facts as mentioned, the plaintiff has efficacious remedy available. In view of the availability of the alternative efficacious relief is available to the plaintiff, the injunction cannot be granted as above mentioned.
PW3 also deposed that the suit property has been vested in the gaon sabha and also proved the relevant record the same is the effect of testimony of S.K. Grover who deposed regarding the pendency of the proceedings before concerned SDM.
It is contention of the defendants that the plaintiff is seeking the relief of declaration in the garb of this simplicitor suit of injunction and this court has no jurisdiction in view of section 85 of DLR Act. I have gone through the entries in the revenue records and the materials relied by the parties and it is further mentioned that the plaintiff is trespasser in the land and no injunction can be granted against the true owner. The plaintiff has already filed the petition before the competent authority and this suit is not maintainable.
11. I have gone through the judgments reported as 36(1988)DLT 428 titled as Hoshiar Singh etc. Vs. Gaon Sabha Darya Pur Kalan and ors. ; JT 1994 (6) SC 585 titled as Prem Ji Ratansey Shah & Ors. Vs. Union of India & Ors. and Mangat Ram Vs. Union of India, 2001(2) RCR 197.
Admittedly the land/suit property has been vested in the gaon sabha in 1985 and the suit property is an agricultural land. There is nothing on record to come to the conclusion that the plaintiff is bhumidar after 1985 i.e. vesting of the land in the gaon sabha. After vesting of the land in the gaon sabha, the same became the public land and the status of the plaintiff cannot be considered more than encroacher. It is not relevant nor helpful to the plaintiff merely that he has constructed shops and house on the agricultural land in contravention of the provisions of Land Reforms Act. Accordingly the plaintiff is not even bhumidhar when this suit is filed. As per the khatoni for the year 1984-85, the suit land vested in the gram sabha. The khasra girdawai of the year 1991-92 also shows that the property belongs to gaon sabha along with khasra girdawari 2003-2004. In lieu of challenging the vesting order of the land in the gaon sabha, the plaintiff has filed this suit for injunction and again the same is challenged before the revenue court. Admittedly after vesting of land to gaon sabha till the filing of this suit, the plaintiff has not sought any declaration regarding he being bhumidar again i.e. the basis for this suit. The plaintiff has not sought even the declaration of any bhumidari rights as mentioned. Even though the plaintiff may be in possession but he has no legal right in view of the testimony of witnesses examined by the plaintiff himself as well as the documents on record. Moreover the encroachment by the plaintiff has also been removed in view of the contentions of the written statement. Even otherwise, the construction if any made by the plaintiff is not approved by the competent authorities. As the plaintiff has no legal right with respect to the suit property, the relief prayed by the plaintiff in the plaint cannot be granted.
I have gone through the judgment reported as AIR 2008 SC 2033 wherein the scope of such a suit for permanent injunction was examined by Hon'ble Supreme Court in detail and it was mentioned that the position in regard to the suits for prohibitory injunction relating to immovable property, is summarized as under:
i) Where a cloud is raised over plaintiff's title and he does not having possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
ii) As a suit for injunction simiplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
iii) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
iv) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases , are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
It was further held while answering the scope of the suit for permanent injunction relating to immovable property, the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and / or possession with injunction as a consequential relief are well settled. It is mentioned -
11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in lawful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3 Where the plaintiff is in possession but his entitled to the property in dispute, or under a cloud, or where a defendant asserts a title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequensive relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. From the document on record it is apparent and proved that the suit property is in the name of Gaon Sabha and the suit land has already vested in the gaon sabha in view of the documents on record. The order of vesting of the land was not challenged before the competent court nor any declaration in this respect was sought by the plaintiff and by no stretch of imagination the plaintiff can be considered as the owner of the suit property having right, title or interest in the same. Merely the plaintiff is in possession of suit property which is Government land illegally and unauthorizedly cannot be given legal protection. The plaintiff has failed to prove that he has right, title and interest in the suit property and became the owner of the same. I do not find any merit in the contentions of the Ld. counsel for the plaintiff that even if the plaintiff is a trespasser, he is entitled for the protection from the law and he cannot be dispossessed from the suit property relying on the judgment reported as AIR 1989 Supreme Court 2097. In my considered view the judgment relied by the plaintiff is not applicable at all in the facts and circumstances of the case as the same was passed with respect to the licencee whose licence has expired. There is difference and this case the possession if any of the plaintiff is unlawful, unauthorized and illegal having no right in the suit property particularly on the Government or public property. If such an encroachment is promoted and encouraged as well as granted legal protection, it shall lead to anarchy as well as grabbing of the public property. It is apparent and clear that the suit property is a public land vested in the gaon sabha and the plaintiff has no right, title or interest in the same. Documents on record are itself sufficient to show the unauthorized encroachment of the suit property. Moreover the testimony of PWs itself remained uncontroverted and unrebutted regarding the suit property being vested in the gaon sabha, belonging to the government and plaintiff is not the bhumidar and is only a trespasser on the Govt. Land. Merely because the plaintiff was earlier bhumidar does not give any right to the plaintiff to remain in possession of the suit land even after the vested the same in the gaon sabha and without any right, title or interest.
The ratio of judgment reported as 36(1998) DLT 428 (supra) is squarely applicable in the facts of the case where it is held that it is for the revenue court to decide the title of the petitioners. If the petitioners are trespassers, they cannot seek injunction from the civil court. In any event, the question of bhumidari rights of the petitioner can be gone by the revenue court and the civil court cannot go into this question. Even otherwise the defendant Gaon Sabha is the owner of the suit land being vested in it and no injunction can be granted against the true owner. Even assuming that the plaintiff is in possession, the possession is only unlawful possession of a trespasser as the suit property has been vested in the gaon sabha and an injunction cannot be issued in favour of a trespasser or person in unlawful possession against the true owner.
As held in re JT 1994 (6) SC 588, interest or right not shown to be in existence cannot be protected by injunction. The question therefore is whether an injunction can be issued against the true owner. Issuance of order of an injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under section 41 (j) of the Specific Relief Act 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
As further held, it is equally settled law that injunction cannot be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the owner.
13. In this case admittedly the land is vested in gaon sabha and the proceedings in this regard are also pending in competent authority. The plaintiff has not sought any declaration regarding vesting of land to gaon sabha nor the same is challenged before competent court. Therefore, the plaintiff has lost his right, title or interest in the suit property after vesting the same in to the gaon sabha.
14. I have gone through the relevant provisions of law along with the general principles for grant of injunction. The injunction is a discretionary relief and its grant or refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful.
Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to dis-entitle him to the assistance of the court.
Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
Merely the plaintiff being in unauthorized possession and illegal occupation of the suit property in the absence of any right, title or interest in his favour is not entitled for the discretionary relief of permanent injunction as prayed in the suit. The discretionary relief cannot be granted for furtherance of the illegality as the same has to be exercised judiciously in favour of the person having legal right. The plaintiff has failed to prove his case regarding right, title and interest in the suit property and it is rather proved and admitted from the testimony of the PWs itself as well as records that he is merely a trespasser / unauthorized occupant of the Govt. Property vested in gaon sabha. Accordingly in my considered opinion the plaintiff is not entitled for discretionary relief of permanent injunction as prayed in the suit. Needless to mention, the relief of injunction is based on equity and the person claiming the same must come with clean hands and equity. I am also guided by the judgment reported as 1994 (28) DRJ (DB) and (1994) 5 SCC 47, wherein Hon'ble Supreme Court has held that :-
" Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. I is not mandatory that mere asking such relief should be given. Injunction is a personal right under section 41 ( j ) of the Specific Relief Act 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the plaintiffs who had no interest in the property. Even assuming that they had any possession, their possession was wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner".
15. In view of above said detailed discussions, I am of the considered opinion that the plaintiff has failed to prove his case and discharge the onus. Plaintiff is not entitled for the relief as prayed. Issue no.3 is accordingly decided against the plaintiff. RELIEF In view of above said discussions and findings, the plaintiff is not entitled for any relief. The suit of the plaintiff is therefore dismissed. No order as to cost in the facts and circumstances of the case. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (G.N. Pandey)
Court on 30th Day of September, JSCC/ASCJ/G.Judge(NE),
2009. Karkardooma Courts,
Delhi.